Alternatives to Prison Conference EncounterRSE Edinburgh, 79 Dec 2006

1
Alternatives to Prison Conference
Encounter/RSEEdinburgh, 7-9 Dec 2006

• Whither the Golden Thread?
• Claire Hamilton
• Dublin Institute of Technology
• chamilton_at_dit.ie

2
Presumption of Innocence

• Focus today on effects of recent English and
  Irish legislation on presumption of innocence. Is
  the presumption being deprived of its tangible
  effects?
• Tony Blair, June 2002 It is perhaps the biggest
  miscarriage of justice in todays system when the
  guilty walk away unpunished
• Arguments in favour of the presumption of
  innocence
• Subjective harms
• Moral harms (Dworkin)
• Myths of the other and of the benign State
  (Kennedy)
• Effectiveness of erosion.

3
English Criminal Justice Act 2003

• Flagship legislation to rebalance system in
  favour of victims
• Presumption of Innocence and bad character rules
  (Part 11, s.101).
• Presumption of Innocence and double jeopardy
  rules (Part 10, ss.78 79)

4
Bad Character Rules

• From PV v. PE to general tendency
• Bad charactermisconductother reprehensible
  behaviour
• Reasoning Prejudice
• Moral Prejudice
• Empirical support Lloyd-Bostock (2000)

5
Retrial for Serious Offences

• Broad definition of qualifying offence
• New and compelling evidence reliable,
  substantial and highly probative of guilt (s.78)
• Jury mere rubberstamp?
• Governments response to stifle media coverage

6
Irish Criminal Justice Act 2006

• McDowell Balance shifted too far in favour of
  accused
• Walsh Completing a crime control model
• Detention provisions, limited prosecution
  appeals, etc.
• ASBOs (Civil orders/behaviour orders) and
  Presumption of Innocence.
• New proposals for victims curtail right to
  silence bad character evidence.

7
Civil Orders/Behaviour Orders (ASBOs)

• Hybrid structure of orders disguising criminal
  action?
• R v. McCann-HOL designated civil
• Superficial reading focusing on form not
  substance
• Previous acts TIC when sentencing
• Paradoxical conclusion-civil yet seriousness of
  matters involved mandates criminal SOP

8
Proposed Law Reforms to Rebalance the System

• Curtail the right to silence through adverse
  inferences consequent shift of focus to accused.
• Bad Character as seen above, conjures up a
  prejudicial atmosphere (R v. Perry)
• Nullifying an acquittal in certain circumstances.

9
Whither the Golden Thread?

• Is it real for accused persons in the UK and
  Ireland? Kilcommins et al (2004) Irish due
  process rights have a look but do not touch
  touch but do not taste quality.
• Ashworth and Blake (1996) 40 of Crown Court
  offences offend the presumption.
• Chakrabati (2005) The presumptionlike
  innocence itself, is more easily compromised than
  reclaimed. It seems to me that we would not be
  living with the chilling spectre of the
  anti-terror control order if we had been more
  critical of his older cousin, the ASBO,